The Pen and The Sword

I love and loathe the law in equal respect and often for the same reasons. More often than not, the judicial system is quite clear on the confines in which we as a society must act. Sometimes, and this is where the love/loathe relationship really comes into play, the law is a complicated mistress, where interpretations come into play and, like the subtle sigh of a mistress, can lead to confusion.

Reading through the mire that is the collection of articles published as a result of Independent TD Catherine Murphy’s speech as part of the Comptroller and Auditor General (Amendment) Bill 2015: First Stage, is perfect example of how much a simple sentence (or five) can become complex.

At the time of writing, the general consensus is that what has occurred is erroneous and will have if not long-term ramifications, then at least medium-term ramifications on the media and parliamentary relationship. The immediate ramification and the one generating the most headlines outside of the Republic, is that the move by a High Court judge to uphold an injunction granted to Denis O’Brien over the right of Dail Privilege; clearly illustrates the control money and those holding it can wield over public interest.

A quick scan of the Friday evening’s online reports shows that the UK has picked up on the story; no-one appears to be overly sympathetic to O’Brien’s declaration that he has the right to privacy concerning what he calls “personal financial matters”.

Everyone has the right to privacy; however, absolute privacy is not guaranteed. As your public profile increases your level of privacy decreases, this rule is one of the barometers of determining the merit of defamation cases (defamation cases, no matter the jurisdiction are notoriously difficult and would take a far longer post to dissect). RTE’s assertion that although the current controversy may include declaring transactions relating to the personal finances of O’Brien, he is enough of a public figure and the matters involved are of import to the public that it overrides his right to privacy.

A statement from O’Brien’s spokesperson, James Morrissey, issued on Friday naturally argues against this “There had always been a separation of powers but a fundamental and core principle of a democracy is the right of every individual to their good name and reputation and privacy in matters that are private.”

The information disclosed by Murphy is still there, it just can’t be reported. While many are saying there’s a reporting blackout and the media has been silenced, which to a certain degree is true, it’s not entirely true. From the content of the link above, there is enough information available to the general public, if they are willing to click on a few extra links, to at least get some indication of what the original and as yet un-aired RTE report may contain. If you look closely at enough reports, many do link to the Oireachtas debate.

On Tuesday, both RTE and the Irish Times, in what appear to be separate cases, will seek to clarify what exactly the injunction restricts in terms of reporting. Part of me would prefer, a Hollywood style showdown in the courtroom with all media outlets presenting a united front in a bid to loosen the restrictions of the injunction. Somehow, I suspect that won’t happen. I find it difficult to comprehend that an injunction would be so comprehensive as to have impeded Dail Privilege.

This is the crux of the matter.

The Oireachtas is what has been truly silenced and what has everyone, except Enda Kenny calling foul.

Article 15.12 of the Constitution is clear and unambiguous: utterances made in either House wherever published shall be privileged which means the media can report them.

This mechanism between the Dail and media is an integral part of the reporting structures, as Brendan Howlin said, “Having utilised provisions of Dáil privilege myself, I think it is an important hallmark of a functioning democracy that any member of the Oireachtas can speak without fear or favour in our national parliament.” He went on to say that the breakdown of this will be something for the Oireachtas to deliberate on in due course. When it will be deliberated is anyone’s guess as, as of Saturday morning there has been no comment from the Office of the Taoiseach on the matter.

A number of TD’s have requested that the Dail be recalled next week, a week earlier than the next scheduled sitting of the Dail, in order to debate the issue. A move which I hope, even though I detest should overt displays of PR spin, will be orchestrated at the last minute once the weekend opinion editions and shows hit the newsstands/airwaves.

The Oireachtas won’t move until the media moves, which as we know, will be Tuesday. The cynical part of my brain suspects that the ruling decision will be delayed in the hope that the indignation over what occurred late this week will have subsided somewhat.

The ruling Judge will have to tread very carefully which, given the gravity of consequences of his clarification to RTE, is to be accepted.

What can’t be accepted is that we even got to this position. How can one person exert so much influence as to silence not only the media but the parliament?

They say money can’t buy you everything; in O’Brien’s case it seems that it can at least buy you the best team of lawyers. When it comes to securing injunctions, the best lawyers are the most important and only weapon you need.

It seems this limitless supply of finance, coupled with the share percentage in INM makes for an impressive, if not daunting serpent’s head to attempt to control. For control is what is needed of O’Brien.

Who will be controller, or at least who will be leading the effort to control will become clearer after Tuesday.

It seems we will finally get an answer to the question, which is mightier; the pen or the sword.